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therefore many circumstances will, where condonement is pleaded against a suit for divorce by the wife, be often disallowed, although an opposite conclusion would be deduced supposing the husband complainant, because he is degraded by exercising a forbearance which, on the wife's part, is often the result of the most amiable feelings, and which, instead of lowering, not unfrequently exalts her character in the world. Conjugal cohabitation after an act of adultery avowed by the husband to the wife, may be condonation ; but it does not follow that because she overlooked an offence that she could not prevent that she is to be construed to give universal license to unlimited debauchery. On this subject it has been said that wives should not be encouraged to spy over their husbands' actions out of doors, carrying with them suspicions and jealousy, disquietude and misery into other families : and that where the wife can forgive she ought to forgive. Her husband, as the wise, good, but rough Dr. Johnson says, can impose no bastards upon her. But even to this there is a limit. No woman would be justified in remaining in the same house with her husband's concubine-sharing the turpitude of his crime, and partaking of his polluted bed-degrading herself before her children and domestics in the sanctuary of repose to which purity is indispensable.
10. Should the Court be satisfied on the evidence that the facts which entitled the wife to petition for divorce have been proved, and should none of those bars referred to appear to the Court, or be established by way of defence, the Court shall pronounce a decree declaring the marriage to be dissolved.2
We shall now enquire into the requisites of the ne. cessary petition, answer, &c., and of the evidence the Court will require to support the charge of adultery.
| Greenhill v. Ford, 2 Shaw's Scotch App. Ca. 442.
1. Proceedings must commence by petition. 2. Form of petition and general requisites. 3, Adulterer to be correspondent to husband's petition, 4. Husband's concubine need not be co-respondent to wife's
petition. 5. Reasons for the distinction. 1. Affidavit to be filed with petition—reasons for requiring
contents. 7. Must be sworn at Westminster. 8. Citation issues when petition and affidavit filed. 9. Served with copy petition on respondent and co-respondent. 10. Application to Court if service cannot be effected. 11. Court most unwilling to dispense with service. 12. Respondent to file answer in 21 days. 13. Form of answer and contents. 14. Petitioner and respondent may file further pleadings. 15. Questions of fact may be tried by a jury. 16. Trial-how proceeded with. 17. Alimony allowed to wife, pending suit. 18. Proof requisite to support averment of adultery. 19. Confession of either party sufficient. 20. Duty imposed upon the Court.
1. Whether the husband or wife is the applicant, the proceedings for divorce must be commenced by a petition,' stating as distinctly as the nature of the case permits the facts upon which the claim to have the marriage dissolved is founded.
2. The form of petition in both cases is the same. In general it states the marriage; the subsequent co
habitation; that there was issue of the marriage, any; the offence committed ; and concludes with a prayer for relief. The parties should be properly described, and a reasonable specification of time and place given throughout; property brought on the marriage settlements made, and other rights existing ; and, separations, if any, with the causes occasioning them, ought to be stated.
3. To a petition presented by the husband the alleged adulterer must be made a co-respondent, unless, upon special grounds, allowed by the Court. The adulterer being either unknown, or perhaps being out of the jurisdiction, may be assigned as a reason for not making him a co-respondent.
4. It is, however, unnecessary to make the person with whom the husband is alleged to have committer! adultery a co-respondent to the wife's petition. But Court may direct it to be done.3
5. The main object of bringing the adulterer in the former case before the Court, is that he may be mulcted in costs, and in damages for his delinquency, if damages are claimed. The absence, in most cases where the wife is the petitioner, of any foundation for these reasons, as well as many considerations arising from the different situations of the parties, no doubt, caused the legislature, unless in special cases, not to require the person charged with having the adulterous connexion with the husband to be brought before the Court.
6. With every petition there must be filed an affidavit verifying the same, and stating that there is not any collusion or connivance between the deponent and the other party to the marriage. It was considered that many fictitious suits might be instituted, and with the view to nip the evil in the bud, an affidavit, solemnly denying all collusion and connivance, is required.
A petition for divorce may pray alternatively for judicial separation. 2 Sec. 28.
3 Ibid, 4 Sec. 34.
5 Sec. 33, Sec. 41.
7. This affidavit must, in all cases, be sworn before the Court at Westminster.
8. On the petition and affidavit being filed, a citation is issued, commanding the Respondent, within eight days of the service, to appear in Court, and answer the petition, or, in default of so doing,' the Judge will proceed to hear the charge or charges proved, and pronounce sentence, his or her absence notwithstanding.2
9. The citation is then served, together with a copy of the petition, under the seal of the Court, 3 personally upon the respondent, 4 and upon every party whom it is intended to make a co-respondent in the cause.5
10. In cases where personal service cannot be effected, an application is made to the Court to substitute some other mode of service; or, under the provisions
Act, to dispense with service altogether.
11. The Court is very slow to dispense with service of the petition. In one case, where the petitioner, a client of the writer's, had been for nearly five years deserted by her husband ; and it was sworn that the petitioner did not know, nor had she within her power, the means of ascertaining in what particular part of Australia her husband then was, yet, it appearing possible, although not probable, that the requisite service might be effected, the Court said, having regard to the importance of the proceedings, it would not pronounce an order dispensing with service until it saw that not merely was service attempted, but further, that every reasonable effort to that end had proved ineffectual. Substituting some other mode of service is a different thing; to avoid inconvenience and delay the Court will readily do this, if it can be satisfied that the citation and petition will come to the hands of the proper parties, in any other manner that may be suggested.
12. Within twenty-one days7 from the service of the citation the respondent is to file an answer to the peti
I Rules and 0. 4. 2 Rules and O., Form 6.
5 Rules and 0. 10.
tion, otherwise the petitioner shall be at liberty to proceed to proof of his or her petition.
13. The answer is a pleading filed by or in behalf of the respondent. It usually denies, in a formal manner, that the offences charged in the petition were committed by the respondent; and relies on one or more of the bars to the petitioner's remedy, as entitling the respondent to have the petition dismissed, or as a ground of defence. No affidavit is required to be filed with the answer, unless it contains matter other than a simple denial of the facts stated in the petition. The answer must then be accompanied by an affidavit made by the respondent, verifying such other or additional matter, 3 and, in addition, further stating that there is not any collusion or connivance between the defendant and the other party to the marriage.
14. Any time within fifteen days from the filing of the answer, the petitioner may file his reply; and the same time is afterwards allowed to the respondent for bringing in any further statement,5 by way of answer to this last pleading of the petitioner.
15. The case being now at issue: When the proceedings have raised the questions of fact necessary to be determined, either party may apply to the Judge to direct that the truth of any question of fact arising on the proceedings be tried by a jury. And if neither party claim the right, the Judge himself shall determine whether the same shall be tried by a jury or before the Court itself;? or whether by oral evidence or upon affidavit.8
16. Whenever a case is to be tried before a jury, due notice of trial is given, and the case in other respects conducted like ordinary trials at nisi prius.
17. It is important to observe here, that the Court has, during the progress of any suit for the dissolution
1 Rules and 0. 14.
2 Form No. 4. post p. 93. 2 Rules and 0. 15.
4 Rules and 0. 16. 5 Rules and 0. 18.
6 Rules and 0. 20. 7 Petition for dissolution of marriage must be heard by at least three Judges. 8 Rules and 0. 21.